Kentucky Court turns away challenge to tobaccco free prison

Posted: October 29, 2013 in News and politics

LOUISVILLE, Ky. — Kentucky’s prisons can remain tobacco-free because the head of the state Department of Corrections has the authority to ban cigarettes and smokeless tobacco from the facilities, the Kentucky Court of Appeals ruled Friday.

A three-judge panel concluded that a 1952 law grants the Corrections Commissioner the authority to restrict an inmate’s smoking privileges for disciplinary purposes. That law, along with a 1992 statute, grant the Corrections Department all the authority it needs, Judge Glenn Acree wrote.

“The statute places no limit on the Commissioner’s authority to implement a tobacco-free policy applicable to all state-run penal institutions,” Acree wrote in an opinion joined by judges Irv Maze and Donna Dixon.

Death row inmate John Mills, 43, challenged the ban, saying Corrections Commissioner LaDonna Thompson didn’t have the authority to implement a tobacco-free policy. Mills was sentenced to death in Knox County for the 1995 stabbing death of 79-year-old Arthur Phipps at his residence in Smokey Creek.

Kentucky started the tobacco-free prison policy in 2006. It fully implemented the policy in 2012. In a memorandum, Thompson cited health trends and a review of information from other states as among the reasons for snuffing out tobacco at all state prisons.

Currently, 24 states prohibit indoor smoking. California, Nebraska, Arkansas, and Kentucky prohibit smoking on the entire prison grounds, both indoors and outdoors.

The federal Bureau of Prisons adopted a smoke-free policy for its facilities in July 2004.

Mills sued over the ban in Franklin Circuit Court in 2012 after losing an internal prison grievance. Mills contended that Thompson lacked the authority to impose a ban.

Circuit Judge Thomas Wingate dismissed the challenge, which Mills pursued without the help of an attorney. Mills appealed the decision.

Lawmakers first required state facilities to create separate smoking areas in 1994. The legislature returned to the subject in 2006, when it exempted jails and detention centers from that requirement, but allowed department heads to regulate the use of tobacco.

Later that year, then-Gov. Ernie Fletcher issued an executive order banning all smoking in public office buildings occupied by the executive branch of state government. Fletcher exempted the Kentucky State Penitentiary in Eddyville, which houses Mills and other death row inmates, from the order.

Acree concluded that the order applied only to executive branch employees, not inmates.

The executive order “does not in any fashion restrict or prohibit the Commissioner of the Department of Corrections from undertaking a tobacco-free initiative as it pertains to inmates such as Mills,” Acree wrote.

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